Alltel Kentucky, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1350 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1350
Alltel Kentucky, Inc. and Communications Workers
of America, Local 3310, AFL-CIO. Cases 9–CA–
34577 and 9–CA–34617.
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On July 31, 1997, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The General
Counsel, Charging Party, and the Respondent filed ex-
ceptions and supporting briefs and the Respondent filed
an answering brief to the exceptions of the General
Counsel and Charging Party.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
We agree with the judge that the Respondent’s pro-
posal concerning wages, submitted during bargaining
over an initial contract, put the Union on notice that the
Respondent did not intend to increase wages in January
1997 as it had done annually for the previous several
years. The Union’s failure to request bargaining in the
face of such notice defeats any claim that the Respondent
unlawfully discontinued the January increase.3 Accord-
ingly, we find that the Respondent did not violate Section
8(a)(5) and (1) when it withheld the increase.4
Contrary to our dissenting colleague, we do not believe
the Respondent was required to be more specific than it
was during its November negotiating session. During
that meeting, in response to the Union’s prior request for
the Respondent’s wage proposal, the Respondent pre-
sented the Union with the results of a wage survey it had
commissioned that showed that the Respondent’s current
wage scale was higher than the average for the sampled
area.5 As the judge found, the Respondent informed the
Union that, based on the survey, it did not intend to pro-
pose an increase in wages and that its position on a wage
freeze would not change.6

1 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 The Respondent’s exception to the judge’s Order is granted insofar
as the Order apparently inadvertently indicates that the Respondent
violated Sec. 8(a)(1) by interrogating employees concerning their union
sentiments. As the Respondent points out, the complaint alleges, and
the judge found, only that the Respondent coerced and restrained em-
ployees by informing them that the Respondent failed to give them an
annual wage increase because of their support for the Union. We shall
correct the Order and notice to conform to the judge’s findings.
3 Stone Container Corp., 313 NLRB 336 (1993). See also Associated
Milk Producers, 300 NLRB 561, 563 (1990); Gibbs & Cox, Inc., 292
NLRB 757 (1989); Citizen’s National Bank of Wilmar, 245 NLRB 389
(1979).
4 It is clear that an overall bargaining impasse is not a condition
precedent to a change in a term or condition of employment where, as
here, the change concerns a discrete event which is scheduled to occur
during the bargaining process. See Stone Container, supra. In the
instant case, the discrete event was the January increase.
The General Counsel and Charging Party argue, how-
ever, that the Respondent did not provide specific notifi-
cation that it was thereby declining to give an upcoming
increase that would be warranted under past practice.
Indeed, the Charging Party asserts that Union Negotiator
Dearing had no knowledge that the Respondent had a
practice of annual wage increases and that he understood
the Respondent’s November proposal to concern merely
the “concept” of economics in the contract. The General
Counsel and Charging Party thus argue that the Union
did not knowingly waive its right to bargain over the
January increase.
We do not agree. It is difficult to construe the Re-
spondent’s proposal of “no increase” as meaning any-
thing but no wage increase at all, regardless of what type,
including any January increase.7 Given the unqualified
breadth of this proposal, it is irrelevant that the Respon-
dent made no concurrent reference to its prior practice or
that the Union may not otherwise have been apprised of
such practice.8 Having been notified of the Respondent’s
decision to grant no wage increase, it was incumbent
upon the Union to request bargaining over that decision.
It failed to do so. Thus we agree with the judge that the
5 The parties had been meeting monthly since the March 20, 1996
certification. At the Union’s request, however, the parties deferred
discussion of economic proposals until they resolved some of the none-
conomic issues. The Union first requested the Respondent’s wage
proposal at the October bargaining session. The Respondent provided
this proposal at the next meeting.
6 On cross-examination, the Union’s representative, Dennis Dearing,
who participated in the November bargaining session, testified that he
didn’t recall the term “wage freeze” being used, but made the following
admission:
Q. And, further [the Respondent] told you that while it didn’t
propose to—it didn’t propose a reduction in wage rates that it
did propose no increase?
A. Yes.
7 Indeed, Union Representative Dearing testified that he informed
the bargaining unit employees at a December 9, 1996 meeting that the
Respondent was not offering any money in negotiations and that he
would have been surprised if the Respondent had implemented a Janu-
ary 1997 wage increase, because it would have been inconsistent with
the position the Respondent had taken prior to that at the bargaining
table. Employee John Holt, a member of the Union’s negotiating com-
mittee who was also credited by the judge, similarly testified that he did
not expect a raise in January, given the Respondent’s expressed attitude
at the negotiating table. There is no tenable claim that employees did
not know of the past practice.
8 The Union knew that the Respondent had completed a study show-
ing that its wages were higher than average for the area. Thus, the
Union could not have reasonably believed that the Respondent would
nonetheless grant a January wage increase, which increase would have
expanded the differential.
326 NLRB No. 140
ALLTEL KENTUCKY, INC. 1351
Respondent did not violate Section 8(a)(5) and (1) by
withholding the January increase.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Alltel
Kentucky, Inc., Shepherdsville, Kentucky, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1.
“1. Cease and desist from informing its employees
that they did not receive their annual cost of living wage
increase because of their support for the Union.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER FOX, dissenting in part.
I agree with my colleagues’ finding that the Respon-
dent violated Section 8(a)(1) when Richard Allison, one
of its supervisors, informed employees that they did not
receive an annual January 1997 wage increase because
the employees had selected the Union, during an election
held the previous March, to be their collective-bargaining
representative. I do not agree, however, that the Re-
spondent acted lawfully in withholding a January in-
crease. In my view, the Union lacked sufficient notice
that the Respondent’s wage proposal presented during
the November 1996 contract negotiations—a proposal
that there would be no increase in current wage levels—
signified that the Respondent would be cancelling the
increase which would likely have been given in January
if past practice were followed. Accordingly, I would
reverse the judge on this issue and would find that the
Union’s failure specifically to request bargaining on the
January increase did not constitute a waiver and that the
Respondent thus violated Section 8(a)(5) and (1) by fail-
ing to grant the wage increase.
The parties were bargaining for an initial contract fol-
lowing the Union’s certification on March 20, 1996.
Because the Respondent had agreed to the Union’s re-
quest that the parties resolve certain noneconomic issues
before negotiating over economic subjects, wages did not
become an issue until October 1996, when the Union
(having put a complete proposal on the table) asked the
Respondent for a wage proposal. The Respondent then
commissioned a wage survey for the Kentucky area and
presented its analysis of the survey and its wage proposal
at the November 13 meeting. According to the testimony
of Dennis Dearing, the chief union negotiator (whom the
judge appeared to credit regarding negotiations over the
wage increase), the Respondent’s chief negotiator stated

9 We agree with the judge, however, that the Respondent violated
Sec. 8(a)(1) when one of its supervisors, Richard Allison, informed
employees that they did not receive their annual wage increase because
employees had selected the Union as their collective-bargaining repre-
sentative.
that, although the survey would justify reducing wages,
the Respondent proposed only that wages would not be
increased. It is undisputed that from 1983 to 1995, the
Respondent had followed a practice of giving an annual
winter cost-of-living wage increase; but, as Dearing testi-
fied, he knew nothing of the practice and the Respon-
dent’s representatives at no time discussed, or even re-
ferred to such a practice.1 According to Dearing’s testi-
mony, he viewed their bargaining over wages as “bar-
gaining the contract,” and he did not then know when the
parties might reach agreement on a contract.
Under Board precedent, the Respondent was free both
to bargain for a contract under which annual cost-of-
living increases would not be given and, in the event no
contract was agreed on by the end of January, to propose
that, under established standards, no annual increase be
given that month.2 Because of its obligation to maintain
the status quo during contract negotiations, however, the
Respondent was not free to terminate the annual increase
practice unless this was agreed to by the Union or the
parties had reached a general impasse in contract nego-
tiations and termination of the annual practice was part
of the Respondent’s final proposal.3 There is no finding
that the Respondent was implementing a final contract
proposal upon impasse. Thus, in order to forgo the Janu-
ary increase, the Respondent was obligated to put the
Union on notice of its position that the particular increase
was not warranted under established criteria, so that the
Union would have an opportunity to bargain over the
amount before the time for granting the increase arrived.4
As noted above, the Respondent made a general wage
proposal of “no increases,” but failed to make any sepa-
rate proposal concerning how the existing practice would
be implemented in January. In my view, the Union’s
1 There was no allegation that the withholding of the increase was
discriminatory, in violation of Sec. 8(a)(3), but the judge’s finding that
Supervisor Allison told employees they probably would have received
an increase if they had not brought the Union in indicates that following
past practice would mean granting an increase.
2 Stone Container Corp., 313 NLRB 336 (1993) (employer did not
violate Sec. 8(a)(5) in withholding a periodic wage increase when it
gave advance notice that no April increase would be given because
application of established criteria for determining such increases war-
ranted none and union failed to bargain over that proposal.
3 Bryant & Stratton Business Institute, 321 NLRB 1007, 1018
(1996), enfd. 140 F.3d 169 (2d Cir. 1998); Daily News of Los Angeles,
315 NLRB 1236, 1237–1241 (1994), enfd. 73 F.3d 406 (D.C. Cir.
1996).
4 Stone Container Corp, supra. Compare Roper Corp., 263 NLRB
1073, 1074 (1982)(Notwithstanding employer’s contract proposal to
eliminate merit increase system, employer violated Sec. 8(a)(5) by
failing to notify the union that annual merit increases would be with-
held while contract was being negotiated), enf. denied 712 F.2d 306
(7th Cir. 1983). In denying enforcement, the court of appeals did not
question the legal principles applied but found that the General Counsel
had failed to prove lack of notice, especially in light of his failure to
call the union negotiator as a witness. The court believed an adverse
inference was warranted. 712 F.2d at 310. In the present case, as noted
above, Dearing testified that he was told nothing about any withholding
of an increase while the contract was being negotiated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1352
negotiators could reasonably view the Respondent’s “no
increase” proposal as its proposal for the wage system
that would be in effect under the contract and not as a
proposal concerning interim conditions. Lacking ade-
quate notice of the Respondent’s intent concerning what
action it proposed to take with regard to existing salary
practices before a new contract was agreed to, the Union
cannot properly be held to have waived its right to bar-
gain over the amount of a January increase. Thus, I
would find that the Respondent’s withholding of that
increase amounted to unilateral action in violation of
Section 8(a)(5) and (1) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT inform our employees that they did not
receive their annual cost of living wage increase because
of their support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
ALLTEL KENTUCKY, INC.

David Ness, Esq., for the General Counsel.
William C. Moul, Esq., of Columbus Ohio, for the Respondent.
John L. Quinn,Esq., of Birmingham, Alabama, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried in Louisville, Kentucky, on June 4, 1997,1 pursuant to
a consolidated complaint and notice of hearing (the complaint)
issued by the Regional Director for Region 9 of the National
Labor Relations Board (the Board) on April 4. The complaint,
based upon an original charge in Case 9–CA–34577 filed on
January 28, and an original and amended charge in Case 9–
CA–34617 filed on February 6 and 11, by Communications
Workers of America, Local 3310, AFL–CIO (the Charging
Party or Union), alleges that Alltel Kentucky, Inc. (the Respon-
dent or Employer), has engaged in certain violations of Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
Issues
The complaint more specifically alleges that the Respondent
engaged in several independent violations of Section 8(a)(1) of
the Act including encouraging employees to decertify the Un-
ion, informing employees that pictures would be taken of them
at work, in the event of a strike, and the pictures could be used
as a reason for refusing to reinstate them, and informing em-

1 All dates hereafter are in 1997 unless otherwise indicated.
ployees that their annual cost-of-living wage increase was de-
nied in retaliation for selecting and supporting the Union as
their collective-bargaining representative. Additionally, the
complaint alleges that the Respondent discontinued its practice
of granting annual wage increases to its employees without
prior notice to and affording the Union an opportunity to bar-
gain with respect to the conduct and the effects of the conduct
in violation of Section 8(a)(1) and (5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties after the conclusion of the hearing,2 I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in providing tele-
communication services, with an office and place of business in
Shepherdsville, Kentucky, where it annually purchased and
received goods and materials at its facility in excess of $50,000
directly from points outside the Commonwealth of Kentucky.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On March 20, 1996, the Union was certified as the collec-
tive-bargaining representative of a 23-person unit at the Re-
spondent. Employee John Holt was designated as the spokes-
person for the employees and served on the Union’s negotiating
committee.
The parties commenced collective-bargaining negotiations
for 10 bargaining sessions culminating on January 20. The
chief negotiator for the Union during the majority of the ses-
sions was Dennis Dearing and Attorney William C. Moul
served as Respondent’s chief spokesperson. The parties did not
achieve a contract during this period and on the date of the
hearing still had not reached a collective-bargaining agreement.
In a union meeting held on December 12, 1996, the employ-
ees authorized a strike and Dearing apprised Moul of this fact
on January 3. No strike took place up to and including the date
of the hearing.
At all material times, Richard McClain held the position of
president of Respondent and Richard Allison and Terry Ed-
wards served as supervisors.
B. The 8(a)(1) Violations
1. Allegations concerning Richard McClain
The General Counsel alleges in paragraph 8(a) of the com-
plaint that on or about January 21, McClain encouraged em-
ployees to decertify the Union.
On January 22, a meeting was held in the conference room
of the Shepherdsville facility attended by McClain, Supervisor
Richard Allison, Union spokesperson John Holt and employee
Keith Walker. Prior to the meeting, Allison informed Holt that
no discipline would be taken against Walker. The meeting was
held because Walker allegedly made some threatening remarks
2 The Respondent’s unopposed motion to correct the transcript,
dated July 8, is granted.
ALLTEL KENTUCKY, INC. 1353
to a fellow employee. At the commencement of the meeting,
McClain stated that we need to be very careful about what we
say to each other as things can be perceived as threats. These
are tense times with what is going on between the Union and
the Employer and a number of employees have mixed feelings.
Holt testified that McClain then went on to state that the em-
ployees have been union for relatively a year and have not
gained anything from it. McClain, according to Holt, then said
you can talk to the Union and tell them you do not want to ne-
gotiate. Holt said, “I’m not the guy to decert [sic] the Union.”
McClain testified that he asked Holt why the employees had
not organized their own local union and Holt responded that the
Union would not permit them to do that because the local had
less then 50 members. Holt, according to McClain, went on to
state that he was working as hard as he could to represent the
majority, even if the Union was to dissolve or drop the whole
thing. McClain then asked if that was a possibility and Holt
said no.
Walker testified that he heard McClain tell Holt that we have
had the Union over a year and if we wanted to get rid of it, we
could go to the Union. Holt, according to Walker, replied that
McClain should talk to the employees who wanted to get rid of
the Union as he still wanted union representation. Allison testi-
fied that Holt inquired of McClain if additional progress could
be made in the negotiations between the parties. Holt, accord-
ing to Allison, said if enough people wanted to drop this, they
would, and he would support this. McClain then questioned
Holt about this and told him that several employees had ex-
pressed different feelings about dissolving the Union. Holt said
that he attempted to make things clear to everyone and McClain
replied that he told several employees to discuss this with the
Union but the employees said such an option was not available.
The meeting concluded, according to Allison, with McClain
stressing to Walker the seriousness of the incident and told him
that any recurrence would require disciplinary measures.
The general test applied to determine whether employer
statements violate Section 8(a)(1) of the Act is “whether the
employer engaged in conduct which reasonably tends to inter-
fere with, restrain, or coerce employees in the free exercise of
rights under the Act.” NLRB v. Aimet, Inc., 987 F.2d 445 (7th
Cir. 1993); Reeves Bros., 320 NLRB 1082 (1996).
Considering the above recitation and the independent ver-
sions of what was said during the course of the January 22
meeting, I am not persuaded that McClain encouraged employ-
ees to decertify the Union. First, I note that it was Holt rather
then McClain that used the word “decert” during the course of
the meeting. Second, on January 23, Allison reduced his recol-
lection of what was said by each of the participants in the meet-
ing to handwritten notes which were introduced in evidence.
The notes confirm that it was Holt who made the statement that
if enough people wanted to drop this, they would, and he would
support this. McClain then questioned this and explained that
several employees had said different things about not getting
accurate information and wanting to dissolve the Union and he
told these employees to discuss the subject with the Union.
Lastly, while the testimony of Holt and Walker is similar in
certain respects, I find that Walker’s version of the McClain
conversation does not rise to the level of a coercive statement.
In this regard, Walker testified that McClain stated, “if we
wanted to get rid of the Union we could go to the CWA and get
rid of it.”
Under these circumstances, I am unable to find that McClain
encouraged employees to decertify the Union. Rather, I find
that it was Holt who brought up the subject that if any of the
employees showed an interest to dissolve the Union, he would
support that. McClain then followed up on this statement and
told Holt that several employees expressed this position to him
and he suggested that the employees talk to the Union. There-
fore, I recommend that paragraph 8(a) of the complaint be dis-
missed.
2. Allegations concerning Richard Allison and Terry Edwards
involving the use of cameras
The General Counsel alleges in paragraph 8(b) of the com-
plaint that about January 23, Allison and Edwards informed
employees that they would be taking employees’ photographs
at work so that, in the event they went on strike, the photo-
graphs could be used by Respondent as a reason for refusing to
reinstate them.
Employee Marvin Hallinan testified that in a January 1997
conversation with Edwards at the Mt. Washington central of-
fice, Edwards informed him that the Respondent bought all of
the supervisors’ cameras and gave them notepads to carry in
their trucks. In reply to Hallinan’s question of why, Edwards
responded that the supervisors were supposed to go around and
take pictures of employees if they caught them doing anything
wrong and make notations. In a separate conversation with
Allison several days later at the central office, Hallinan said to
Allison, “well Richard, this is a Kodak moment I suppose, isn’t
it?” According to Hallinan, Allison laughed and then Hallinan
asked what is the purpose of taking these pictures? Allison
said, after the strike was over they could come back and use
these pictures to hire back who they wanted to.
Employee Thomas Drury testified that he had a conversation
with Edwards in January 1997, on the porch of the central of-
fice and fellow employee James Stottman was present. Drury
asked Edwards about some rumors going around that the Re-
spondent was in the process of purchasing cameras. Edwards
replied that McClain had purchased two cameras and some
notepads for each of the supervisors who were to use them to
get pictures of employees doing things wrong that could be
used against them after the strike. Stottman testified that Ed-
wards stated during the conversation that the cameras were
authorized by McClain and were to be used for safety viola-
tions or if the employees were doing anything wrong.
Supervisor Edwards credibly testified that he received two
cameras from his supervisor on or about January 18. The fol-
lowing Tuesday, January 22, a staff meeting was held for all
supervisors and McClain told those in attendance that they were
anticipating a strike and the cameras should be used in case any
vandalism took place.3 Edwards admits that he had a conversa-
tion with Drury about the cameras on the porch of the central
office and told him that he was instructed to use the cameras for
any type of vandalism in the event of a strike.
Allison testified that he never had a conversation with Hal-
linan about cameras nor did he have a conversation with Hal-
linan where the words “this is a Kodak moment” were used.
Additionally, Allison testified that he never told Hallinan that
cameras were going to be used for the purpose of seeing that

3 I find that after the union meeting took place on December 12,
1996, it was common knowledge throughout the facility that a strike
vote was taken and authorized.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1354
some people were not rehired or brought back to work after the
strike.
Richard McClain credibly testified that the cameras were
purchased for the sole purpose of preparing the Respondent’s
strike plan. Thus, the Respondent wanted to document any type
of property that might be damaged, in the event of a strike, or to
record any acts of vandalism that occurred. This is a legitimate
plan and photographs are an appropriate mechanism to record
any acts of strike misconduct which could be used to deny rein-
statement to any employees who engaged in such conduct. See,
Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984), enfd.
765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105
(1986).
While I conclude that Hallinan did have the conversation
with Allison about cameras and used the words “this is a Kodak
moment”, Hallinan acknowledged on cross-examination that it
was his understanding that the purpose for the cameras was to
record wrongdoing while the employees were performing their
job functions. Likewise, Stottman testified that Edwards told
him that the cameras were to be used if the employees were
doing anything wrong.
Under these circumstances, I do not find that the Respondent
informed employees that photographs would be taken at work
so that, in the event they went on strike, the photographs could
be used by Respondent as a reason for refusing to reinstate
them. Rather, I find that a number of supervisors informed
employees that, in the event of a strike, the cameras were to be
used to record property damage or acts of vandalism. As found
above, if such acts of vandalism took place, photographs could
be used to deny reinstatement to any employees who engaged
in such misconduct. Therefore, I recommend that paragraph
8(b) of the complaint be dismissed.
3. Allegations concerning Richard Allison
The General Counsel alleges in paragraph 8(c) of the com-
plaint that in early January 1997 and again on January 20, Alli-
son informed employees that the Respondent denied them their
annual January 1997 wage increase in retaliation for selecting
the Union as their collective-bargaining representative.
Employee Harold Walker testified that in early January 1997
at the Shepherdsville office, while he was about to clock out,
Allison said, “ that some of Walker’s co-workers did not like to
be accountable for their time and wanted the Union but the rest
of us would pay.” Walker said, “well, I guess we are not going
to get a raise are we?” Allison replied, “that if we hadn’t been
messing with or voted in the union, we would have probably
got a four or five percent raise this year because we have been
transferred into the Northeast region now and they all receive
real good raises.” Allison denied that he had a conversation
with Walker concerning the reason for the Respondent not of-
fering or instituting an increase in wages nor did he tell Walker
that the employees will suffer for the Union being brought in.
Employee Marvin Hallinan testified that on January 20, at
the Shepherdsville central office, he had a conversation with
Allison about the Union and the subject of a strike. Allison
informed Hallinan that a strike would be useless because the
Respondent would bring in three people to one and pay them
seventeen dollars an hour to get the job done. The discussion
continued and Hallinan said, “Richard, I heard we weren’t go-
ing to get a raise for two years.” “Why is that?” Allison re-
plied, “that’s just a little slap on the hand for going union.”
Hallinan also said to Allison, that he heard a rumor that we are
going to be sold at the end of the year and if that is the case,
why don’t they just give us a contract? Allison said, they want
to set an example with us for the rest of the nonunion sectors of
the company so they will not petition a union. Allison denied
having a conversation with Hallinan in January 1997 in which
he said that the reason employees had not gotten a raise in pay
was because it was a slap on the hand for going Union nor did
he ever have a conversation with Hallinan at which the subject
of pay raises came up. Allison testified, however, that he did
have a conversation at the Shepherdsville office with Hallinan
in January 1997 about the Union, and asked him whether pay
was the main issue. Hallinan replied, that the main issue was
seniority not pay and a discussion took place about that issue.
Allison told Hallinan that the Respondent would never support
a seniority clause or operate under that environment.
At all material times, Allison denied having individual con-
versations with employees Hallinan and Walker wherein the
subject of pay raises was discussed or that he made any refer-
ences about the Union concerning the employees not receiving
a pay raise. It should be further noted that Allison also denied
having a conversation with Hallinan about cameras or a conver-
sation that started with or included the words “this is a Kodak
moment.”
I fully credit the testimony of the above-noted employees
and find that Allison made the coercive and threatening state-
ments attributed to him. Such statements violate Section
8(a)(1) of the Act. See Conagra, Inc., 248 NLRB 609, 615
(1990) (threatening employees with loss of benefits) and House
Calls, Inc., 304 NLRB 311, 319 (1991) (coercive interroga-
tion). The testimony of each employee seemed to hang to-
gether and did not appear fabricated. Indeed, each employee
testified to individual conversations with Allison and I con-
clude their testimony was clear and convincing unlike Allison’s
which was defensive and appeared contrived. Likewise, it was
common knowledge throughout the facility that the parties
were in the midst of collective-bargaining negotiations and the
subject of wages was a contentious issue. Allison categorically
denied having any of the above conversations and gave a blan-
ket denial when asked whether he interrogated or threatened
employees about the Union. Contrary to Allison, I find that
each of the above conversations took place as testified to by the
employees.
Accordingly, I find that the General Counsel met his burden
with respect to paragraph 8(c) of the complaint.
D. The 8(a)(1) and (5) Violations
1. Background
Respondent concedes that from 1983 through 1995 in De-
cember of those years, a cost of living wage increase was given
to its employees. The issue in this portion of the case involves
the Respondent’s decision to discontinue the annual cost of
living increase in January 1997. While the Respondent takes
the position that any general increase is granted when it is ap-
propriate and when circumstances so dictate, the record estab-
lishes a consistent and established past practice of granting the
annual wage increase.
After the Union was certified on March 20, 1996, it re-
quested to engage in negotiations for an initial collective bar-
gaining agreement. Those negotiations commenced on May
15, 1996.
ALLTEL KENTUCKY, INC. 1355
2. The collective-bargaining negotiations
At the commencement of negotiations on May 15, 1996, the
Union was represented by national representative Nell Hor-
lander who retired after the first four bargaining sessions. Na-
tional representative Dennis Dearing replaced Ms. Horlander
and attended his first bargaining session on August 30, 1996.
Respondent was represented throughout the negotiations by
chief negotiator Attorney William C. Moul and President Rich-
ard McClain.
During Dearing’s first negotiation session, he requested to
defer any active discussion of wages until an attempt was made
to resolve the non-economic matters. The subject of wages was
first discussed in an October 1996 negotiation session when the
Union raised the question of when the Respondent would make
some economic proposals.
In order to prepare for the portion of the collective bargain-
ing negotiations regarding wages, the Respondent commis-
sioned a wage survey for the greater Louisville market. On
November 13, 1996, the Respondent provided at the negotia-
tion session on that date, the analysis of wages and benefits that
it used in formulating its economic position. The survey shows
that Respondent’s wages were above even the metropolitan
Louisville levels. During that session, Dearing testified that the
Respondent informed the Union that it believed the wage sur-
vey supported a reduction in wage rates but that it did not in-
tend in 1997 to propose a reduction in wages for employees.
Likewise, Dearing testified that during the November 13, 1996
negotiation session, the Respondent informed the Union that it
did not intend to propose an increase in wages and its position
on a wage freeze would not change.
3. Events between November 13, 1996, and the last negotiation
session on January 20
In the December 12, 1996, union meeting that authorized and
approved the strike vote, Dearing informed the membership
that the Respondent was not proposing to offer a wage increase
in January 1997. During that meeting, no person in attendance
inquired about the January cost-of-living increase. Likewise,
no employee inquired about such an increase after it was dis-
continued in early 1997.
On January 3, Dearing advised Respondent’s chief negotia-
tor, Moul, that the Union had taken a strike vote and obtained
approval for a strike.
4. The January 20 negotiation session
In this last negotiation session, the parties were still apart on
the issues of seniority, promotions, layoff and wages. The Un-
ion informed Respondent that each of those items was a strike
issue and officially apprised the Respondent that a strike vote
was taken and approval obtained. Both parties agreed that the
Federal Mediation and Conciliation Service (FMCS) would not
be helpful to resolve the above issues and Dearing apprised an
FMCS mediator to this effect prior to January 20. During the
course of the meeting, the Respondent told the Union that they
proposed a short term contract with no additional increase in
wages. At the conclusion of the meeting, Moul told Dearing
that he did not believe the Respondent was willing to change its
position with respect to any of the outstanding issues but that he
would review it with the Respondent to be certain that it accu-
rately represented their position. By letter dated January 21
from Moul to Dearing it states in pertinent part:

This will confirm that the statements I made yesterday with
reference to the Company’s position are accurate. That is, the
Company is not willing to modify the positions it presently
has presented at the bargaining table with reference to layoff,
promotions and wages. This will also reconfirm that the
Company agrees with your assessment as to the potential use
of FMCS. That is, we agree that the parties have fully com-
municated and that mediation would serve no purpose.
5. Conclusions
The General Counsel contends that since 1983 the Respon-
dent or its predecessor gave annual cost of living wage in-
creases every year about December or January. Thus, the wage
increases became an established practice and ripened into a
term and condition of employment. Since the Respondent did
not give the Union notice and an opportunity to negotiate over
the discontinuance of the practice, a violation of Section 8(a)(1)
and (5) of the Act occurred.
The Union supports the theory of the General Counsel and
further argues that bargaining concerning the wage increase
was driven by the simultaneous processing of a decertification
petition in the Respondent’s state wide unit in Georgia. In this
regard, a decertification campaign commenced in late summer
and early fall 1996, the decertification petition was filed on
January 7, and the election was held on April 1 and 2.
The Respondent concedes that from 1983 through 1995, an
annual cost-of-living wage increase was given to its employees
but argues that this general practice did not ripen into a term
and condition of employment because the written policy of the
Respondent provides that any general wage increases are
granted only when it is appropriate and when circumstances
dictate. Moreover, throughout the negotiation period between
May 15, 1996 and January 20, the Respondent consistently
informed the Union that circumstances did not justify any sort
of a wage adjustment and proposals advanced by the Respon-
dent included a one year agreement without a wage increase or
wage freezes for the entire contract period.
An employer may not unilaterally alter terms and conditions
of employment without affording the union representing its
employees a meaningful opportunity to negotiate in fact. NLRB
v. Katz, 369 U.S. 736, 743 (1962). Pay increases or adjust-
ments which are established and regular events are conditions
of employment not subject to unilateral change. Lamont Ap-
parel, 317 NLRB 286 (1995). In Daily News of LosAngeles,
315 NLRB 1236 (1994), the Board held that in its view, the
standard set forth in NLRB v. Dothan Eagle, 434 F.2d 93, 98
(1970), which looks to whether a change has been implemented
in conditions of employment, captures best what lies at the
heart of the Katz doctrine. It neither distinguishes among the
various terms and conditions of employment on which an em-
ployer takes unilateral action nor does it discriminate on the
basis of the nature of a particular unilateral act. It simply de-
termines whether a change in any term and condition of em-
ployment has been effectuated, without first bargaining to im-
passe or agreement and condemns the conduct if it has. In my
opinion, the evidence shows that the parties did not negotiate to
impasse or reach agreement on the annual cost-of-living wage
increase.4 However, the discussion does not end here.

4 Prior to December 1996 and early January 1997, the period of time
when the annual cost-of-living wage increase was routinely given, the
parties only engaged in one meaningful negotiation session when the
subject of wages was discussed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1356
The gravamen of the General Counsel’s case is that the Re-
spondent did not give the Union notice or an opportunity to
negotiate over the discontinuance of the annual cost-of-living
wage increase. Contrary to this position, the Respondent ar-
gues that while it did not specifically inform the Union that the
January 1997 increase would be discontinued, it apprised the
Union on November 13, 1996, during negotiations for the par-
ties’ initial collective bargaining agreement, that no wage in-
creases would be forthcoming.
In agreement with the Respondent, I find that during negotia-
tions it articulated to the Union that no wage increases would
be forthcoming and this served as sufficient advance notice that
it intended to discontinue the annual cost-of-living wage in-
crease normally given in December and January. It was then
incumbent on the Union to request to negotiate the discontinu-
ance of the annual cost-of-living wage increase. The evidence
shows that this did not occur. In this regard, Union Chief Ne-
gotiator Dearing testified that throughout the history of the
negotiations there were zero discussions concerning the Re-
spondent’s annual December or January wage increase and at
no point in time did the Union request to bargain about that
subject. Dearing also acknowledged that in the December 12,
1996 union meeting, he informed the union membership that
the Respondent was not proposing to offer a wage increase and
no person in attendance at the meeting inquired about the an-
nual January increase nor did any employees raise the issue in
January 1997. Likewise, Union Negotiator John Holt testified
that he never asked about the January 1997 annual wage in-
crease during negotiations or at the January 22 meeting, and
admitted that he did not expect such a raise in January 1997.
Under the particular circumstances of this case, I find that
the Union had sufficient advance notice that the Respondent did
not intend to give any wage increases in January 1997, which
encompassed the annual cost of living increase, and its failure
to request negotiations on this subject privileged the Respon-
dent’s discontinuance of the annual wage increase in January
1997. Therefore, contrary to the allegations in paragraphs 9
through 11 of the complaint, I find that the Respondent did not
violate Section 8(a)(1) and (5) of the Act when it discontinued
its practice of granting annual wage increases to its employees
and recommend that those allegations of the complaint be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), 2(6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by interrogating employ-
ees concerning their union sentiments and informing employees
that they did not receive their annual cost-of-living wage in-
crease because of their support for the Union.
4. Respondent did not engage in violations of Section
8(a)(1) and (5) of the Act when it discontinued its practice of
granting annual wage increases to its employees.
5. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Alltel Kentucky, Inc. Shepherdsville, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union member-
ship, sympathy, and activity.
(b) Informing its employees that they did not receive their
annual cost-of-living wage increase because of their support for
the Union.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Shepherdsville, Kentucky, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 27, 1997.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT coercively question you about your union sup-
port or activities.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ALLTEL KENTUCKY, INC. 1357
WE WILL NOT inform our employees that they did not receive
their annual cost of living wage increase because of their sup-
port for the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
them by Section 7 of the Act.